Regulatory: When it comes to airport noise regulation, “Big Brother” is watching you

With the long awaited passage of the Federal Aviation Administration’s (FAA) Modernization and Reform Act of 2012, H.R. 658 (FAA Reauthorization Act), on March 6, 2012, the increasing pace of expansion of both commercial and general aviation airports, and the FAA’s new airspace redesign initiatives to reduce delay, airport noise and its impacts have become an increasingly hot topic.

In the old days, pre-1990, local airport operators, usually constituted of elected local representatives, could impose “reasonable, noise based, nondiscriminatory” regulations such as limits on the noisiest aircraft using the airport, as well as on the hours of operation (curfews). While many local communities currently impacted by noise from runway realignments and changes in approach and departure patterns still pressure their local representatives for relief, since the passage of the Airport Noise and Capacity Act of 1990 [1] (ANCA), the power to regulate airport noise has become, with very few exceptions, the exclusive province of the federal government.

ANCA’s principal aim was to substitute advances in “quiet engine” technology for restrictions on airport operations. To carry out that aim, ANCA mandated that the noisiest, “Stage 2,” aircraft in excess of 75,000 lbs. (generally commercial aircraft)[2] would be phased entirely out of the existing fleet by Dec. 31, 1999 [3] and no new Stage 2 aircraft above 75,000 lbs. could be added after Nov. 5, 1990 [4] (Non-Addition Rule).[5]

In return for ensured technological advances, ANCA divests local proprietors of the power to unilaterally regulate airport noise.

An airport noise or access restriction on the operation of Stage 3 aircraft not in effect on Oct.1, 1990, may become effective only if the restriction has been agreed to by the airport proprietor and all aircraft operators or has been submitted to and approved by the Secretary of Transportation. . .,”[6].

The scope of this requirement is global.

“Restrictions to which this paragraph applies include -- (A) a restriction on noise levels generated on either a single event or cumulative basis; (B) a restriction on the total number of Stage 3 aircraft operations; (C) a noise budget or noise allocation program that would include Stage 3 aircraft; (D) a restriction on hours of operations; and (E) any other restriction on Stage 3 aircraft.”

Exemptions do exist,[7] but they are case-specific. For example, subsection (d)(4), “a subsequent amendment to an airport noise or access agreement or restriction in effect on Nov. 5, 1990, that does not reduce or limit aircraft operations or affect aircraft safety” applies almost exclusively to John Wayne Airport in Orange County, Calif.

The punishment for any attempt by a local proprietor to evade these restrictions is draconian, including loss of present and future federal funding and denial of the power to impose a “Passenger Facility Charge,” a type of local imposition used by airports directly (rather than through FAA grants) to fund existing and future airport improvements.[8]

In summary, federal regulatory sovereignty over the “airspace of the United States” has long been comprehensive and preemptive of state and local restrictions.[9] ANCA brings that comprehensive control closer to earth by preempting local airport noise regulatory decision making.

[1] 49 U.S.C. § 47521, et seq.

[2] The recently passed FAA Reauthorization Act applied the same restrictions to aircraft under 75,000 lbs. as had long been requested by communities around large general aviation airports, such as those in Naples, Florida and East Hampton, New York.

[3] 49 U.S.C. § 47528(a)

[4] 49 U.S.C. § 47529(a)(2)

[5] There are temporary exceptions to both rules, see, e.g., 49 U.S.C. § 47528(b) and 47529(b) and (c) which are no longer at issue after July 1, 1999.